Rule of Law

Lord Hodgson of Astley Abbotts Excerpts

Tuesday 26th November 2024 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I have been listening to some very high-level exchanges, including two extremely distinguished maiden speeches. I am one of the minority of non-lawyers participating in this debate today, so I am afraid I shall be operating at a less rarefied level. For the purposes of this debate at least I, as a non-lawyer, will be the man on the Clapham omnibus.

I want to make it clear that this man on the Clapham omnibus understands, appreciates and supports the vital role that the rule of law plays in our society. You cannot study history at university, as I did, without realising that to be the case. But I am also of the view that there are aspects of the rule of law, as seen from my omnibus, that are under strain. This non-lawyer offers three for thought and discussion.

The first is the danger of the law becoming deracinated and distanced from the society it seeks to serve. An essential part of maintaining general confidence in the rule of law is what I have called before in speeches in your Lordships’ House “informed consent”—my noble and learned friend Lord Stewart of Dirleton dealt with this topic a bit in his remarks—by which I mean that the rule of law cannot consist of ex cathedra judgments from some lofty chamber. Rather, it has to take cognisance of how our society is changing and how our social attitudes and approach are altering. In short, it has to remain in touch with, and be seen to be relevant by, those of us on the Clapham omnibus.

I appreciate that many lawyers will see this as wrong and inappropriate. Some might say that I am suggesting that the courts bow to the whims of temporary public opinion and that, if society wants a different approach, it is up to Parliament to change the law and make it so. I understand this up to a point, but we all know that the law needs interpreting and there is no fixed, immediate and completely correct view. That is, after all, what legal cases are about. Where on this possible spectrum of interpretations does the judicial judgment fall? If these judgments are seen by us on the Clapham omnibus to be at odds with our life experience, and persistently so, our confidence in the rule of law will be weakened. That is my first point.

My second point is about the rule of law and secondary legislation. I was interested to hear in her very impressive maiden speech the noble Baroness the Advocate-General refer to this issue, as indeed did my noble friend Lady Laing of Elderslie.

Some Members of your Lordships’ House will recall that I was, for a time, chairman of the Secondary Legislation Scrutiny Committee. With my noble friend Lord Blencathra, who was, at the same time, chairman of the Delegated Powers and Regulatory Reform Committee, and assisted enormously by, sadly, the late Lord Judge, we ran a campaign. Our report was called Government by Diktat. The DPRRC report was called Democracy Denied?

There were several debates on these reports held in your Lordships’ House and, if the noble Baroness the Advocate-General, and indeed the noble and learned Lord the Attorney-General, have a moment to glance through Hansard, they will see that there was an overwhelming level of support for addressing this issue from across the House, not least from the Front Bench of what was then Her Majesty’s loyal Opposition —now His Majesty’s Government. We have heard a little less about this since the general election, although tonight gave me renewed hope that things might be changing. The Advocate-General said in her opening speech, while promising a fresh approach, “This is what a reset looks like in practice”. I hope I have quoted her correctly and that she will forgive me if I say that it is a little skeletal for what I am hoping for in this. I wonder whether the Attorney-General might be able to give the House a bit more detail about this reset when he comes to wind up in an hour or so’s time.

From a rule of law and a secondary legislation scrutiny point of view, it is not the regulations themselves that cause the major part of the trouble but the stuff that comes with them—the guidance, circulars, statements and codes of practice on which judges seem to be tempted to make comments.

Let me give a very quick example. Members of the House will recall that, when Covid struck, we were all restricted on how much we could exercise. We could exercise once per day, as the House may recall. But, in fact, that was not in the law; it was in the guidance. The law—the regulation—said nothing about how often you could exercise; it was up to the guidance. In my humble view, courts and judges are unwise to allow themselves to be tempted to comment on matters of guidance. Inter alia, if judges comment, as many have, about the need to have regard to the guidance, I, as the man on the Clapham omnibus, will take that to mean that I had better do it. Therefore, guidance morphs into law and practice. This development, along with the deracination point I made earlier, comes close to offending the Bingham principle of the law having to be

“accessible … intelligible, clear and predictable”.

My last point is about another of Lord Bingham’s points:

“Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes”.


This is about the practical application of the rule of law and the issue of equality before the law referred to by my noble friend Lord Wolfson in his opening remarks, and indeed dealt with by my noble and learned friend Lord Bellamy.

I have been distressed many times in my career by the way in which big companies, rich men and, dare I say, dishonest men, can bend—note that I say “bend”, not “break”—the rule of law to their purposes. Let me give a simple example again. I have advised a small company. It had the capacity of inventiveness and found a way to create a better chiller mechanism—the chillers that you see in your supermarket. A big company bought six of them, not to sell them but to take them apart and re-engineer them so that the patent my client company thought it had was not broken. The advice that my client had was that actually the patent had been broken. A seminal meeting took place at which the big company said, “Fine, we’re going ahead and if you don’t like it, sue us—and by the way, before you start, our lawyers say it’ll be two years before this gets to court”.

That is game over—no small company has the resources, let alone the psychological stamina, to keep up with that pressure. Then we move on to individuals. An individual architect I knew had a client who asked for work to be done and then refused to pay any of the bill on some minor fault. When the case was coming to court, the client claimed he was ill, he changed his solicitor, the case was not ready, and the delays went on and on. Individuals, particularly individuals dealing with rich men, wish to bring a case to court so that their life can go on. They want to have closure and move on, and too often the law has not provided the right balance and the right protection to these people. Part of my vision of the rule of law is that they should be provided with that—they should be allowed to have that and the law should be there. The equality, in essence, is too often being broken.

I conclude where I began. Of course I am a strong supporter of the rule of law, but there are some areas where it needs persistent examination, to look at and consider the ways that we can make it real for everybody, including the people with me on the Clapham omnibus.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Hodgson of Astley Abbotts Excerpts

Report stage
Wednesday 6th March 2024 Lords Chamber

[Lord Coaker (Lab)]

I thank the noble Lord, Lord Carlile, for reminding me that I have a copy of that National Audit Office report. He is right—the cost is astronomical, and that is before anybody has been sent. The cost will go up if anybody is sent. The Government have not come forward with those figures; the National Audit Office had to find them out. We have no idea about the number of asylum seekers that the Illegal Migration Act applies to, and we have no idea what the Government will do or how many they expect to send to Rwanda.

It is almost unbelievable that we have spent months debating a Bill that not only brings into question all sorts of constitutional principles that we have debated—and no doubt will come back to—but is unworkable. That is the whole point of my Amendment 41.

[Lord Hodgson of Astley Abbotts (Con)]

I too enjoyed the vintage, bravura performance from the noble Lord, Lord Coaker, but let me move from the high constitutional principle to the practical implication of what he is suggesting in these two amendments. Will they do much good? Not really. Will they do much harm? Not really. They are almost certainly duplicative of other statistics being collected elsewhere.

Where amendments add to a Bill without achieving any value, that is a mistake. We want to keep our legislation—our Acts of Parliament—short, pointed and uncluttered. We do not want to put more baubles on the Christmas tree, and these are two particular baubles.

I say with respect to the noble Lord that he has forgotten about the real world. When this Bill becomes an Act, it will be watched like a hawk by every single Member of your Lordships’ House and the other place. The noble Baroness, Lady Chakrabarti, is not in her place, but she will be putting down a Parliamentary Question about it every day. The idea that, somehow, the Government will slide things through, and that we require these two amendments to make the Government honest is fanciful.

Everybody is going to be watching what happens. Is it going to work? Some Members of your Lordships’ House think it will not, and some think it will, but we do not need the Bill extended with more clauses when all the information that the noble Lord is seeking by these amendments will be available anyway, and certainly will be discovered by Parliamentary Questions, Statements, and all other methods of inquiry. I beg to move.

[Lord German (LD)]

My Lords, if there is no other willing speaker, I say to the House that, set alongside breaching international obligations, outing the jurisdiction of the courts, breaching human rights, and being morally unsupportable, these amendments also show the Bill as unworkable and extremely costly to the taxpayer.

I say to the noble Lord, Lord Hodgson, that if we need to know how many, what the consequence will be and how much it will cost, now is the time that we need to know. There is no point finding out after the Bill. It has been extremely difficult to get hold of accurate information on the costs, and I am grateful to the NAO, because it has at least given the published figures some context—but the numbers are tricky.

The trouble with the information we have, of course, is that the Illegal Migration Act itself has created a huge number of people—thousands—who are now in limbo and whose cases have been left because of the way that that Act was constructed. They are unable to have their asylum cases considered, unable to get on with their lives, and unable to work and use their skills and talents, and instead have to live in substandard conditions with no clarity on their fate.

As at December 2023, there are two sets of figures derived from the published figures: there are either 100,000 people awaiting an initial asylum decision, or 128,000 if you include dependants. Some 56% of those made their applications on or after 7 March 2023, when the Illegal Migration Bill was introduced to Parliament. A significant number of these claims will therefore have been deemed inadmissible under that Act, which means their applications are making no progress. Could the Minister tell us how many people are in that limbo at the moment? Given that we understand that the estimates for numbers that can be removed to Rwanda range from 100 to 150 to a couple of hundred, we need a proper policy explanation from the Government as to how they will deal with these asylum seekers. If you divide the number that is possible into the total number of people waiting, this could go on for years and years, and we will still have these people in the country. The Government cannot bury their heads in the sand. These are vulnerable individuals, and we have a responsibility to treat them well. It is just not acceptable to hold all these people in limbo.

On costs, I am grateful to the noble Lord, Lord Carlile, because I have the figures that the National Audit Office has produced. In detail, there is money to be paid going on, and there is money already being paid, but the essential conclusion of the National Audit Office—I do not think it has a political interest in this, though it certainly has a financial interest—is that the cost will be between £1.9 million and £2 million per person. Add that to the list: we have people in limbo, extraordinary costs, and something in the Bill that is basically inhumane. I therefore support these amendments, because they take us some direction to finding out the real truth.

Illegal Migration Bill

Lord Hodgson of Astley Abbotts Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I will speak briefly to Amendment 10 and draw attention to my entry in the register with regard to support from RAMP for this and other groups of amendments.

I have lost count of the number of times I have asked where the child rights impact assessment is, only to be told that we will receive it “in due course”. It should have been available from the outset to help develop policy, and yet here we are at Report stage with no sign of it still. Without it, how are we supposed to assess ministerial claims that their policies are in the best interest of the child and that there is no incompatibility with the UN Convention on the Rights of the Child? Yesterday in Oral Questions I asked the Minister. All he could say was that:

“I am sure that it will be provided”.—[Official Report, 27/6/23; col. 574.]

When? After the Bill has gone through?

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I have looked through these amendments but not put my name to any of them. I have to say that they—in particular Amendment 8—drive a coach and horses through much of what this Bill stands for. Therefore, I am going to ask my noble friend to make sure he resists them.

This is important because we face some very serious challenges in our society as a result of the rapid growth in our population. I will go over this issue only briefly because we are time-constrained, but I just remind your Lordships that this is already a relatively overcrowded island. Last year, we admitted permanently 600,000; the year before last, we admitted 500,000. Stoke-on-Trent has a population of 250,000, Milton Keynes 288,000 and Derby 259,000. If we are going to house those people properly—and we certainly should —we will have to build four Milton Keynes or four Derbies over just two years. On dwellings, we all know how fiercely fought this is. In 2001, there were 21 million dwellings in this country; there are now 25 million—in 20 years, we have built 4 million dwellings.

It is not just at that very high level. The fact that we are introducing hosepipe bans in the south-east of England now is because the population is rising so fast we are running short of water. When we debated this in Committee, I took a certain amount of incoming from the most reverend Primate the Archbishop of Canterbury. He said:

“everyone who has spoken so far has agreed, that we have to control migration. I do not think there is any argument about that, but does the noble Lord accept that of that 700,000 last year, or whatever the number turns out to be exactly, the Bill will cover only 45,000? The Bill is not about overall immigration”.—[Official Report, 24/5/23; col. 897.]

That is a fair point. However, the figure turned out to be 600,000 and it may well be that that 45,000 is 60,000, in which case it is 10%, not a sufficiently significant number, but the real challenge to us is that everybody thinks it is not their challenge. Everybody thinks it is somebody else’s challenge.

We have heard persuasive, dreadful, heart-rending speeches about the positions that people find themselves in—on behalf of interest groups of various sorts—and no doubt we shall hear them again. However, one group has essentially not been heard during our debates, and that is the 67.3 million people who live in this country, 18% of whom are from minority communities.

When I undertook my polling—which, as I have said to Members of the House, is freely available to anyone—I did not want it to be said that it was going to be old white Brexiteers living in the country, as opposed to young trendy hipsters living in the towns. In response to the question “The UK is overcrowded”, between 60% and 70% of people polled, across all social classes, all regions of the country and all age groups, felt that was the case. Every interest group, including those that are seeking to blunt the effect of the legislation before us, has to play its part in reducing the number. Unless we are seen to be responding to between 60% and 70% of our fellow citizens, uglier and nastier voices will emerge to capture that. We need to be conscious of that.

In my view, the amendments would punch holes in the bucket. How much water would flow out I do not know, but I hope the Minister will think very carefully before allowing the bucket to lose too much water because that way difficulties lie for us, for our communities and for generations ahead.

[Baroness Butler-Sloss (CB)]

My Lords, in Committee I tabled a similar amendment to Amendment 10, so I will not say much now because I said it then. I listened with interest to what the noble Lord has just said, and I recognise that we do not want illegal migration. However, there are broader and more important issues.

Children have rights. A child who is unaccompanied comes to this country, sometimes quite young, and is settled here in local authority care, placed perhaps in a foster family or a residential home. They go to an English school and become fluent in English but then, at the age of 18, are then removed either to Rwanda—the only country with which there is an agreement apart from Albania, and Albanian children are unlikely to be in this group—or to some other country or home that they have fled. Quite simply, to uproot children at 18 is, as I said in Committee, cruel.

Bribery Act 2010: Post-legislative Scrutiny (Select Committee Report)

Lord Hodgson of Astley Abbotts Excerpts

Wednesday 3rd February 2021 Grand Committee

[Lord Hodgson of Astley Abbotts (Con) [V]]

My Lords, I too was a member of this committee and I enjoyed serving under the chairmanship of the noble and learned Lord, Lord Saville of Newdigate. Like my noble friend Lord Empey, I also pay tribute to our excellent staff, marshalled expertly by Michael Collon. I chaired a different committee which Michael was clerk to, and so I spoke to him just before Christmas and found that he was retiring from the House on 31 December last. I am sure that I speak for the committee and indeed the whole House when I wish him on behalf of all of us a very happy retirement. I expect that he may well have tuned in to watch this debate this afternoon.

In my remarks I will focus on just three points: the position of SMEs in relation to the Bribery Act; the role of the Government’s anti-corruption champion; and finally, like several other noble Lords, including my noble friend Lord Gold, I shall urge the Government to reach a decision on the widening of the “failure to prevent” offence. These three points need to be considered in the context of the overall conclusion of our report, which is, as our chairman said in his opening remarks, that the Act is an excellent piece of legislation.

First, on the SMEs, it is important that the Government always remember how narrow the management bandwidth inevitably is. Unlike big companies, they cannot double-bank roles. Management time is a precious and scarce commodity. It is therefore critical that decisions on whether to prosecute are taken promptly. To have a sword of Damocles hanging over an SME will, if not paralyse it, certainly render it much less effective. Therefore we were not impressed by the slow pace of progress by investigations of these cases. Most disturbing was the stop-start nature of many of them. Interviews would take place followed by long periods of silence: 12, 15 or 18 months, we were told in the evidence we received.

The Government’s reply to this at paragraph 17 in their response document was that progress was being made, and they prayed in aid that now all preceding cases over two years old will be given special treatment to speed the decision. Two years of uncertainty is a quite unacceptable burden on any company, but particularly on a smaller one, where ownership and management may well be combined. SMEs whose business is focused particularly on exports have, of course, to face the grey area of corporate hospitality, and it would be good to know what progress has been made in fulfilling the pledges made in paragraphs 73 to 75 of that document. Overall, one was left, as other noble Lords have said remarked, with an underlying suspicion that SMEs could be seen as a happier hunting ground for prosecutors. The directing mind principle, referred to by the noble Baroness, Lady Bowles, the inevitably less well-resourced defence and the pressure on small management claims to clear up and move on will all be factors that may lead prosecutors to see an opportunity to make an example. In the Skansen Interiors case, which we examined in some detail, it was interesting that it was not even offered the opportunity of a deferred prosecution agreement.

The next point I want to make concerns an update from my noble and learned friend on the Front Bench on the role of the Government’s anti-corruption champion. I make it clear at the outset that I am not in any way attacking John Penrose MP, who currently holds that position. He is in an unenviable and probably impossible position. In that old country phrase, he is set to get most of the kicks and none of the ha’p’orth. His role seems to be a token nod towards the importance that the Government place on anti-corruption activities, and he appears to have neither the clout nor the resources to be able to carry out the detailed investigations or effect real change. Indeed, until July last year, Mr Penrose was combining the role with that of a Minister of State in the Northern Ireland office.

When my noble and learned friend comes to wind up, can he lift the curtain on the Government’s policy objectives for this post? What is its budget, what staff does it have and to whom does the anti-corruption champion report? What practical results can the Government point to? It is interesting that, if you do a Google search, one of the only entries on the website is Mr Penrose’s appearance before our committee on 10 July 2018.

I return to the issue of Section 7 on failure to prevent, which is seen, as many noble Lords have said, as one of the key parts that drives against corruption and which has proved pretty successful. The Government have taken an inordinately long time to reach a decision as to whether the scope of this offence should be widened to cover economic crime generally. The original consultation paper was issued by the MoJ in January 2017 and the consultation closed at the end of March that year. Now, four years later, we are still awaiting a decision. Can my noble and learned friend please give us a heads-up on the latest position on this when he replies?

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Hodgson of Astley Abbotts Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Thursday 10th December 2020 Lords Chamber

Moved by

[Lord Hodgson of Astley Abbotts]

57: Clause 1, page 3, leave out lines 10 to 16
Member’s explanatory statement
This amendment is tabled to discuss the extent to which the operation of criminal conduct authorisations can be amended by regulation.

[Lord Hodgson of Astley Abbotts (Con) [V]]

My Lords, in moving Amendment 57, I will also speak to Amendment 74.

These two probing amendments are designed to explore how the Government plan to use their regulatory powers in the Bill. I am informed on this because I am the chairman of the Secondary Legislation Scrutiny Committee of your Lordships’ House. Along with the Delegated Powers and Regulatory Reform Committee—chaired by my noble friend Lord Blencathra—my committee has been concerned by the increasing use of skeleton Bills, where only the broadest frameworks are set out in primary legislation and all the practical details are left to regulation.

As a result, Parliament too often has only a general idea of what it may be approving when it passes the primary legislation. The Government may—they probably will—argue that all regulations have to be approved by Parliament, but Members of your Lordships’ House are well aware of the weakness of the scrutiny of regulations, which is that they are unamendable. The House is left with only what I call the nuclear option of complete rejection. Unsurprisingly, in these circumstances, neither House has felt able to press the button, except in the most exceptional circumstances.

Our two committees—my noble friend Lord Blencathra’s and mine—have written to Jacob Rees-Mogg, as Lord President of the Council and Leader of the House of Commons, to express our concern and make suggestions for improvement. Let me take an example from earlier debates in Committee. My noble friend the Minister and other noble Lords—notably my noble friend Lord King and the noble Lord, Lord Carlile of Berriew—referred Members to the revised code of practice as providing a reassurance against bad behaviour in the operation of CCAs. Indeed, the noble Lord, Lord Carlile, urged every Member of the Committee to read through the code. I followed the noble Lord’s advice and read it, all 73 pages of it. I agree that, at least to my untutored and inexperienced eye, it appears extensive and comprehensive, but its weakness is that it is made by regulation—in this case, Section 71 of the Regulation of Investigatory Powers Act 2000. So its contents depend on ministerial policy decisions and can be changed, at any time, by the tabling of an unamendable regulation.

I do not doubt for a moment the good intentions of my noble friends on the Front Bench, nor the good intentions of the Front Benches of the other parties in this House or the other place, but none of them will be in their seat for ever. Amendment 57 is designed to explore the risk of what I described in my remarks at Second Reading as “mission creep”, or, more specifically, how wide the room for manoeuvre is for a future Secretary of State using the powers available under Clause 1(5)(10) on page 3 of the Bill.

I pose three simple questions for my noble friend the Minister to answer when he replies. First, can the Secretary of State, under this clause, add to or remove bodies from the list of relevant authorities given on page 4 of the Bill? Secondly, is there any limit to the changes that the Secretary of State may make, under this clause, to the authorisation levels for CCAs, given in annexes A and B of the draft revised code of practice? This issue has been raised on a number of occasions, notably by the noble Lord, Lord Anderson of Ipswich. Thirdly, is there any limit to the changes that the Secretary of State may make to the purposes for which a CCA is sought? That was a discussion on Amendment 22. In particular, what is meant by “impose requirements” in line 13? That issue was raised by the noble Baroness, Lady Hamwee.

Before I finish, I turn briefly to Amendment 74. This poses the same questions for Scotland as Amendment 57 does for the rest of the United Kingdom, but there is one additional point of concern: whether, as a result of two systems existing, what is known as forum shopping can take place. Historically, in cases involving extradition, prosecuting authorities were in the habit of surveying the legal options open to them and picking the route, courts and jurisdiction that, on past experience and record, were most likely to give them a favourable result. As I see it, the two CHIS systems begin in identical form but, over time, can and probably must be expected to diverge. How far that will be is impossible to predict now, but the possibility of forum shopping emerges. Can my noble friend comment on the interchangeability of CCAs granted under Scottish law being used in the rest of the United Kingdom, and vice versa? I beg to move Amendment 57.

[Baroness Hamwee (LD) [V]]

My Lords, I am very glad that the noble Lord decided to probe these two provisions. I have seen the correspondence published by the three committees. I was struck when the noble and learned Lord, Lord Stewart, in responding to the previous group, referred to the code of practice having the force of law. I do not dispute that, but it is of course law that can be changed by government Ministers without coming to Parliament.

The point just made by the noble Lord, Lord Hodgson, about forum shopping is interesting. As he said, I have asked for assistance on the meaning of some terms during the passage of the Bill. I questioned what is envisaged by the terms “conduct” and “requirements”. I read both to restrict, rather than expand, the scope of what may be done. I would be grateful to have that confirmed or, if not, to understand why not. In short, we should not be expanding opportunities for criminal conduct authorisations without, at the very least, understanding exactly what we are doing.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts (Con) [V]]

I am grateful to all who have participated in this short debate and to my noble and learned friend for his answer. I thought that my first question would be a ball of easy length that he would smite over the boundary, saying that nothing could be added to the list of authorised bodies. I discover that actually the situation is worse than I thought, in the sense that apparently, via regulation, bodies can be added. That seems quite a serious point.

I understand the point about secondary legislation, and it is good to hear that the powers are restrictive, not expansionary.

I did not hear anything about forum shopping. Can my noble and learned friend enlighten the Committee about forum shopping between the Scottish system and the systems in the rest of the UK?

[Lord Stewart of Dirleton (Con)]

I beg the Committee’s pardon for that. I had intended to reply to my noble friend on that point.

The risk of forum shopping must always be considered a live one. It is the inevitable consequence of the existence of separate systems of criminal law in the adjoining jurisdictions. On his real and appropriate concern that this disagreeable practice should not be permitted, given the existence of different systems in the adjoining jurisdictions, there must be constant vigilance to see to it that that does not happen. That constant vigilance will be required of those in each system over time to prevent this practice taking place. I hope that that allays my noble friend’s appropriate concern about this matter.

[Lord Hodgson of Astley Abbotts (Con) [V]]

I am grateful for that. We have vigilance, not legislation, as regards forum shopping, and that was certainly an issue that bedevilled our record, and the records of other countries, in extradition proceedings in another era.

I said that these are probing amendments, and they are. I just wanted to test the ground and am grateful to those who have helped me to do so. I beg leave to withdraw the amendment.

Amendment 57 withdrawn.

--- Later in debate ---

Moved by

[Lord Hodgson of Astley Abbotts]

75C: Clause 4, page 5, line 16, after “authorisations)”, insert “including—
(i) information on the number and types of criminal conduct authorisations requested and the number granted;(ii) whether these authorisations produced any operational benefits;(iii) any material damage or civilian harm incurred as a result of acts authorised”Member’s explanatory statement
This amendment is intended to probe the adequacy of information provided to Parliament on criminal conduct authorisations, and to probe how the efficacy of these authorisations will be evaluated.

[Lord Hodgson of Astley Abbotts (Con) [V]]

My Lords, with this last group, the horse is heading for the stable. If I talk for too long, I shall probably be talking to myself alone. I shall therefore cut to the chase but would, before my remarks on the amendment, add my thanks to the ministerial team for its tolerance and patience. I am also grateful to it for the email I received today inviting me to engage in further detail about how the Bill will operate.

The amendment of the noble Baroness, Lady Jones, who has just spoken, imposed duties on the Investigatory Powers Commissioner when he becomes aware of unlawful or improper conduct. My amendment imposes different requirements on him—in this case, what he must include in his published reports, particularly the annual report. The amendment touches on some of the issues that underlie Amendment 79, tabled by the noble Lord, Lord Paddick, but comes at them rather differently.

During earlier stages of Committee, many amendments were discussed that sought to rebalance the powers proposed in the Bill to ensure that the IPC is notified of any CCAs, that victims could bring complaints to the Investigatory Powers Tribunal, and that prosecutors are left with discretion to bring cases when it is in the public interest to do so. Despite those debates, there are a couple of gaps in what we have discussed so far.

First, our discussions to date place the onus on the victim to alert the regulatory bodies of any mistakes or wrongdoing. Even within the UK, some victims may not be aware of the avenues open to them for redress. However, when the misconduct takes place overseas—an issue I raised in earlier debates—the chances of a victim being able to bring a case must surely be vanishingly small and unlikely. Apart from anything else, the victim would have no way of knowing that the conduct complained about was authorised under this CHIS Bill. Further, they would not know that they needed to bring their case to one of the CHIS-authorising bodies in the UK and that the victim’s own regulatory system would have no role to play. Secondly, in our discussions so far, there has been little emphasis on the value of post-authorisation evaluation of the impact and effectiveness of the CHIS CCA system.

My amendment therefore imposes a duty on the IPC to include in his or her report an impact assessment on, first, the number of CCAs requested and granted; secondly, the operational benefits that have resulted; and, thirdly and finally, an assessment of the damage or harm, particularly to individuals, that occurred as a result of those CCAs that were granted.

Noble Lords’ email boxes will testify that this Bill is an area of considerable public interest and concern, and perhaps I may give the House a brief personal example. About 10 or so years ago, I had an extremely efficient and competent PA who worked with me at my office in the City. She was the daughter of an Iranian diplomat, and her whole family had been forced to flee that country when the Shah was dethroned. Happily for her, she met a man she fell in love with, got married and had a family. I, sadly, lost a very good PA, but that is not really the point. We have kept in occasional touch, and the CHIS Bill has touched a very raw nerve. She explained to me in some detail that it is very similar to legislation introduced in Iran, with the best of intentions, that was gradually corrupted and perverted. I am not—repeat, not—suggesting that we face an Iran-like situation, but I argue that, to reassure my ex-PA and others like her that the original purposes of the legislation still hold good and that it is proving effective, a degree of public transparency and sunshine would be very helpful.

My noble friend may argue that the Intelligence and Security Committee will provide the necessary reassurance. Well, yes and no. I do not for a moment doubt that the ISC is made up of a fine body of Members of your Lordships’ House and the other place and that they will do their very best, but even they can be warned off and frustrated in their inquiries. For example, in its inquiry into the Belhaj and al-Saadi families—who, your Lordships will recall, were rendered by MI6 agents to the Gaddafi regime—the ISC was refused access to key witnesses, so its investigation was largely stymied.

To conclude, in one of our debates on Tuesday, the noble Lord, Lord Campbell-Savours, said that transparency influences conduct, and I agree. Amendment 75C proposes that the Investigatory Powers Commissioner should be required to provide a measured level of public reassurance available to a wider audience than just the ISC in the reports produced, and I beg to move.

[The Deputy Speaker (Lord Rogan) (UUP)]

The noble and learned Lord, Lord Thomas, has withdrawn, so I call the noble Baroness, Lady Chakrabarti.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords for the points they have made. To take the penultimate point raised by the noble Lord, Lord Rosser, I hope that I can provide some of that clarity this afternoon.

My noble friend Lord Hodgson is interested in the information that will be included in the IPC’s annual report. The commissioner has a very clear mandate to inform Parliament and the public about the use of investigatory powers. He must provide a report to the Prime Minister, which the Prime Minister must publish and lay before Parliament. The Investigatory Powers Act already sets out, in detail, what should be included in that report, and I refer my noble friend and the noble Lord, Lord Rosser, to Section 234(2).

I reassure my noble friend that there is already a requirement for the report to include statistics on the use of the power and information about the results of such use, including its impact. The report is therefore extensive but, as would be expected for such sensitive information, safeguards are in place to ensure that that information is protected where necessary. In consultation with the commissioner, the Prime Minister may exclude from publication information which could, for example, be prejudicial to national security. However, public authorities will receive this information and will respond to recommendations made by the IPC.

Turning to a matter that has nothing to do with the amendment, the noble Baroness, Lady Chakrabarti, asked: why go further than the status quo? The status quo is that there is legal uncertainty around undercover operatives, and this Bill creates that legal certainty.

[Lord Hodgson of Astley Abbotts (Con) [V]]

My Lords, I thank all those who have taken part in this short debate and, in particular, I thank my noble friend for her very helpful reply.

Just to deal with a point raised by the noble Baroness, Lady Hamwee, I was not expecting there to be a detailed crawl through every single CCA. Clearly, that would be inappropriate, but an overview would be appropriate because, as the noble Lord, Lord Rosser, pointed out, we do not want a situation where we have no information or too much information. We come back to the issue that has been at the back of many of our conversations during Committee: how do we find the right balance between ensuring that those who look after our safety are protected and ensuring that there is a sufficiency of transparency so that they feel the pressure to behave properly at all times.

I will read very carefully what my noble friend said about what is already proposed and what is already in legislation. I said that this was a probing amendment and therefore, for the time being at least, I beg leave to withdraw it.

Amendment 75C withdrawn.

Queen’s Speech

Lord Hodgson of Astley Abbotts Excerpts

Monday 21st October 2019 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, as other noble Lords have remarked, today’s debate takes place under the shadow of major developments as regards Brexit. However, Brexit will eventually, thankfully, finally come to a conclusion and it is important that in the interim we reassure our fellow citizens that we are not unaware of the many other problems and issues that affect their lives. In that sense, and the sense that we need to move on, I support the general approach of the Government’s programme. The Financial Times may have rather disobligingly dismissed the contents as “sunny optimism”—as if sunny optimism was somehow a crime—but, for me at least, some optimism is far from unwelcome.

The Queen’s speech gives an opportunity to step back from the day-to-day preoccupations and look at the wider picture. I wish to focus on two issues of which the Government need to be aware and take into account in their future thinking.

The first major challenge is the impact of the fourth industrial revolution—that of artificial intelligence and robotics. In the 1960s, Gordon Moore, the founder of Intel, devised what became known as Moore’s Law, which is that computing power will double every two years into the future. The sceptics laughed at Mr Moore but, so far, he has been proved right. We no longer have to confine ourselves to computing power; we now have the rapidly increasing programming power. It is this combination of computing power and programming power that will change the way we live and work.

It is estimated that between 7 million and 8 million jobs in the UK will either disappear or be radically reshaped over the next 20 years. The charges for Governments over that period will be to consider what geographic areas and spheres of economic activity will be particularly affected and then to take remedial action if we are to avoid what may prove to be intolerable strains on our social cohesion.

That circumstance takes me to my second point: the rapidly increasing population of the United Kingdom, as referred to by my noble friend Lord Horam. I have raised this matter in your Lordships’ House before, and again today I make it clear that this is not an attack on immigration or immigrants. I recognise that a level of immigration refreshes our society and economy. My concern is about the wider impact that each one of us—young or old, whatever our race, colour or creed, whether we arrived here five minutes ago or 500 years ago—has on our country. The numbers are stark. As my noble friend Lord Horam has pointed out, the population of the country is increasing by over 1,000 a day: roughly 400 from natural increase—the excess of births over deaths—and something over 600 from net immigration. The longer-term picture is no easier to understand and discern. The ONS suggests that by 2040 we will have more than another 7 million people in this country. My noble friend Lady Williams knows Manchester well and that its population is about 2.5 million. So, we are going to have to build three Manchesters over the next 25 years.

The Migration Advisory Committee, to which my noble friend referred, provides expert advice to the Government on these matters. Its work is valuable and no doubt its advice will be sought in establishing the promised points-based immigration system, but, as my noble friend also pointed out, it has one fundamental strategic weakness: that, following its terms of reference, it sees everything through an economic prism and in economic terms. However, demographic change is about much more than economic impact: it has huge quality of life impacts.

This is a big subject but let me give two quick examples. First, water. The Environment Agency says that by 2040-45 this country, especially in the south-east, will be running short of water. Some of this, of course, will be the result of global warming, but much more will come from the growth in population. Each of us on average consumes 140 litres of water a day.

Secondly, there is the impact on our environment and ecology. In 1970 the United Kingdom had 20 million pairs of farmland wild birds. By 1990 we had lost half of them, and by 2010 the number had halved again. Behind this came collapses in the less glamorous forms of life: insects, plants, fungi, lichens and bacteria. Is this all down to demographic change? Of course it is not, but growth in population is clearly playing a significant role. Does it matter? To many of us in this House, it does not matter that much because we will not be here in 2045 when these developments finally play out and we see the impact. However, there is surely a need for a calm, rational debate, discussing how to weigh up these many difficult, sensitive and often conflicting objectives, if only, and not least, to take into account the views of the generations who will come after us. So, when the Government produce an Environment Bill—pages 98 to 100 of the briefing on the Queen’s Speech—which does not even mention demographic change, I am inclined to despair.

Further Developments in Discussions with the European Union under Article 50 of the Treaty on European Union

Lord Hodgson of Astley Abbotts Excerpts

Monday 11th March 2019 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, like the noble Lord, Lord Rooker, I am a member of his noble friend Lord Cunningham’s Secondary Legislation Scrutiny Committee Sub-Committee B. My noble friend Lord Callanan was kind enough to say some nice words about the committee members in his opening remarks. I hope that that includes the staff, because our ability to perform well and effectively is very much dependent on the backup we get from the staff, who have done a terrific job. When my noble and learned friend comes to reply, I hope he will make it clear that the nice remarks, which I am sure the noble Lord, Lord Rooker, and I are happy to accept, include the staff, who have worked so hard to sort out and make sense of these extremely difficult and complex issues.

So many noble Lords speak this afternoon with great authority and certainty. I fear that I do not have certainty. I am a mild Brexiteer. I do not believe that the day after we leave the European Union the sun will come up shinier and brighter than ever before, nor do I believe that it will not come up at all, or hardly at all. Indeed, in many ways, following the remarks of my noble friend Lord Howard, I think that in almost any combination of outcomes we will find that commercial and other imperatives will drive this country and the European Union to find a way to work together and that for many people, therefore, despite some major changes, life will go on much as before. If that sounds eccentric, even complacent, perhaps I may underline my reputation for eccentricity by going a stage further. Despite all the sound and fury that is being devoted to this topic now, when we come to 2030 or 2035 and look back 10 or 15 years, I think that this will be seen to be a second-order event, because we stand the edge of two huge shifts of the tectonic plates which are going to transform the way this country lives and the way it relates to the rest of the world.

The first of these is the irreversible shift of wealth from the West to the East. In the 1990s the G7, of which this country was a member—the seven most prosperous countries in the world—accounted for about 56% of world output. By 2040, it is estimated that it will account for 22%. We are going to be, whether we are inside or outside the EU, in a very slow part of the stream. That will pose great strains on this country at every level, including our social cohesion. Social scientists will tell you that it is not absolute wealth that is the determinant of happiness; in many cases, it is relative wealth: how I am doing vis-à-vis my neighbour. As people in this country see other countries in the Far East begin to move up alongside us, they will begin to question what this country stands for, the way the system works, our approach and indeed our structures.

The second factor is the impact of the fourth industrial revolution. It is hard for us to estimate just what that is going to do for this country, the way we live and the way we work, over the next 10 or 15 years. The central estimate at the moment is that about 7.5 million jobs in this country will either disappear or be radically changed. My noble friend Lord Ridley, who is not in his place, will say not to worry about that too much, because we will be able to create more jobs: they will be destroyed, as has always been the case in the past. He may be right—indeed I hope he is—but it is a pretty heroic scale of job creation over a very much shorter period than in other industrial revolutions, which have lasted 50, 75 or 100 years. Whether he is right or not, it is going to be a time of great change which will also impose huge strains on our society. So the background to my Brexit position is the key question: does membership of the European Union help or hinder our ability to face up to and resolve these challenges? In short, will economic power, large power blocs, be the key determinant, or will it be the ability to be flexible and speedy in our response? I have concluded that, in fact, flexibility will be by far the most important factor. I fear that the structures and member states of the EU will not be able to react fast enough—a fast reaction will be critical—nor will they be able to forge a common purpose among them.

Against that background, I turn to the proposed transaction—the Prime Minister’s deal. During a lifetime in the City in which I watched and participated in negotiations on the outcome of which hung fame, fortune and reputation, two features predominated. The first was that, as these fierce negotiations drew to a close, both parties would feel dissatisfied and disappointed and that if somehow they had played the cards better, a better outcome could have been achieved. For me, the question is not whether this is a good deal; it was never going to be a good deal. The question is whether it is a good enough deal for us to want to back it. The second feature was that the toughest issues always had to be sorted out at the eleventh hour. The idea that hard issues could be sorted out early in a negotiation is fanciful.

The noble Lord, Lord Thomas of Gresford, referred to the old phrase, “the man on the Clapham omnibus”. Perhaps I may introduce a much more vulgar and politically incorrect phrase—“It ain’t over till the fat lady sings”. As we enter March, the fat lady is starting to warm up. That means that, as the noble and learned Lord, Lord Hope of Craighead, said—and as the noble Lord, Lord Hannay, did not say—any extension of the Article 50 period would be a great mistake. It is only the pressure of an end date that will force the concessions and agreements that have to be reached to make this deal happen. Otherwise, everybody relaxes and the fat lady goes back to her dressing room and waits for a chance to warm up in a month or two.

In my view the Prime Minister’s proposed deal is good enough, although we must remember, as the noble Lord, Lord Rooker, has just reminded us, that it is only half a deal. There is another whole chunk still to go in negotiating our future relationship. Of course it would be helpful to get some movement on the backstop, but I feel that the EU is unlikely to want to hold us within its structure if we are paying no subscription. Many of us have felt, and evidence is now emerging, that, given the relatively low volume of trade across the land border, technology will provide an answer.

It may be unfashionable to say this, but I believe that the Prime Minister has played an impossible hand pretty well. Assailed by equal and opposite forces within both the Conservative and Labour parties, she has plodded into the storm enduring unceasing ridicule and criticism. I hope she will get the necessary backing for her transaction so that this country can reorientate itself to the new situation and begin to address not only the big strategic issues I mentioned earlier in my remarks but the many short-term problems that we face.

--- Later in debate ---

[Baroness Hayter of Kentish Town (Lab)]

My Lords, the noble Lord, Lord Hodgson of Astley Abbotts, says, “It ain’t over till the fat lady sings”. I am not sure whether he is expecting me to break into song to signal that we are near the end of this debate, or whether he was referring to the Prime Minister, who is touching down about now in Strasbourg.

[Lord Hodgson of Astley Abbotts]

May I say to the noble Baroness that I was not referring to her in any way? The man on the Clapham omnibus is a theoretical person and so is the fat lady in the example I gave.

[Baroness Hayter of Kentish Town]

Listening to Ministers—not tonight, but on other occasions—one might think that the lack of an agreement is all the EU’s fault. However, of course, it is we who chose to leave the EU: that is, we as a country, not necessarily as individuals. Mrs May chose her red lines before she understood the task or consulted those who did. Mrs May chose to trigger Article 50 and thus our exit day. It was the Prime Minister who chose our negotiating lead: he resigned. Mrs May chose our second negotiating lead: he resigned. Mrs May chose our third negotiating lead: he could not hack it, so she then sent the Attorney-General over, and now we find that he cannot hack it.

The truth is, of course, that all those faults lie with the Prime Minister. She failed to reach out to the 48% —who, my noble friend Lord Rooker reminded us, are 15.8 million people—who might accept that they lost the referendum but surely still have the right to a Brexit that would be the best possible one for the country. She failed to reach out to the Opposition, even after she lost her majority, to see whether a deal could be honed which could be supported across the Commons. She failed to heed anyone other than the ERG, whose concerns for the countries, regions and interests of the UK have yet to be demonstrated. She negotiated a deal that she cannot even sell to her own Parliament: it was defeated by 230 in the House of Commons and looks set for a similar defeat tomorrow. Is it any wonder that one Cabinet source told the Telegraph:

“I would say there are only two ministers in the Cabinet who still support her”?


We heard earlier that one of these is “Failing Grayling”.

How much better it would have been for the country and, indeed, for her premiership, had the Prime Minister heeded this House, but also the Opposition, and crafted a deal which would see us in a customs union with the EU, solving much of the Northern Ireland border checks issue and, importantly, preserving our supply chains and our manufacturers’ major trading routes. Blinded by those ludicrous red lines, the Prime Minister ignored the one path out of her dilemma. In doing so, she ignored the majority of those who voted in the House of Commons against her deal, seeking to bend only to a minority of those who voted against her: the hard Brexiteers. Of course, they fixated on the backstop because, truth be told, they had never considered the Northern Ireland dimension of Brexit before 23 June 2016. As the noble Lord, Lord Kerr, reminded us earlier, it was the UK which proposed a backstop. The EU agreed to it and now the UK is saying, “Oh, we do not now agree with our own proposal, so please will the 27 change it?”

Throughout this sorry saga, the Prime Minister and her team have shown little respect for the EU, its Parliament, which has to agree the deal, or its key players, who find themselves addressed via a lecture in Grimsby, rather than across the table.

The Government have failed to respect both the EU negotiators and staff who have devoted untold hours to implementing a decision taken by the UK and the 27 rather busy Prime Ministers who keep having to add this to their already demanding agenda. Indeed, it hardly seems conducive to a better outcome for our Foreign Secretary to threaten that relations with the EU will be “poisoned for many years” if Brussels fails to budge in the talks and that,

“future generations, if this ends in acrimony ... will say the EU got this wrong”.

There is no blame to our government; everything is the fault of the EU. Perhaps that is what leads the noble Lord, Lord Armstrong of Ilminster, to say that he has never felt a greater sense of shame.

As the noble Lord, Lord Finkelstein, has made clear, the one way not to leave the EU is without a deal, because of the sudden imposition of WTO tariffs and the ending of existing commercial relationships all built on zero tariffs and shared rules—all without even a transition period for business, importers, exporters and our ports to prepare. As for holidaymakers, perhaps 1.5 million of their passports may not work across the 27 member states because there is not enough time left on them. Their health cover will be lost; there will be queues at Eurostar and ports. This is to say nothing of their not being able to take their pets with them. They will not like that hard crash out as reality bites. Crucially, it would leave our UK citizens living across the 27 countries in a legal limbo, their healthcare, residency, jobs, and even driving licences uncertain. That is all without the opportunity costs mentioned by the noble Lord, Lord Horam, and the health, crime, housing and education issues that we are not dealing with because of the attention and money being spent considering no deal.

The noble Lord, Lord Howard of Lympne, warned of a loss of trust if we fail to leave on the 29th of this month. But there will be a much greater loss of trust if we leave in such a way as to damage the very people who voted for Brexit. So where do the Government go from here? It is possible they are going to need a Bill I have just been sent. It is the Bill on how to revoke Article 50—the draftsman was worried that the Government did not have it, so just in case they need it I offer it to the Minister.

If the Prime Minister fails to engage with the Opposition, with those willing to take the country forward on a consensual, constructive route, she risks being written up in history, either as my noble and learned friend Lord Goldsmith described—as Vladimir waiting for Godot, perhaps with the noble and learned Lord, Lord Keen, as the boy, waiting for an impossible majority to arrive—or perhaps, more seriously, as a chapter in the next Christopher Clark version of The Sleepwalkers. This is the book on how the 1914 leaders took Europe to war by simply sleepwalking into it. She may do the same by dozing on the job, so that the UK falls, heedlessly and unnecessarily, into the economic insecurity and diplomatic catastrophe of an unplanned, unwarranted and unnecessary no-deal exit from the near half-century of co-operation, growth and development we have had with our near neighbours in the EU.

It is not for this House to pass judgment on whether the Prime Minister has the confidence of the Commons. But I can say with absolute confidence that the Opposition have little faith in her approach to Brexit, in her deal and in her ability to negotiate an acceptable way forward in the interests of the whole of the UK. Our future is in her hands. I hope that makes others sleep easy, because it does not me.

Non-Contentious Probate (Fees) Order 2018

Lord Hodgson of Astley Abbotts Excerpts

Tuesday 18th December 2018 Lords Chamber

[Lord Pannick]

I am grateful to the noble Baroness for her observation. My answer to the noble Baroness is that, yes, the Lord Chancellor is obliged to have regard to,

“the competitiveness of the legal services market”,


but I understand that to apply only in a context where there is a competitive market. Of course, in many contexts there is. But, like the noble Baroness, I do not understand there to be a competitive market for probate, and in my judgment that provision does not require the Lord Chancellor to have regard to a factor which is simply not relevant to the topic we are discussing.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I am not a lawyer. I have never applied for probate, I know nothing about the operation of the probate service and I come at this as a babe in the legal wood. But having read the paperwork that was put down and heard this afternoon’s discussion, I see four things. I see us helping the poorest in our society by eliminating any charge for estates between £5,000 and £50,000. I see us ensuring that the maximum charge is never more than 0.5%, and sometimes less than that. I see a maximum of £6,000 on even the largest estate, and I see this providing a degree of cross-subsidy to ensure that we have an efficient courts and tribunals system—a point that the noble Lord, Lord Pannick, has just made. So I say to my noble friend Lady Browning, with the very greatest respect, that those seem to be perfectly good Conservative principles, and I therefore support what the Government are trying to achieve here.

If we chase down the vires point which the noble Lord, Lord Marks of Henley-on-Thames, focused on, surely any amount of return above cost is not allowable in his argument. We are about to have a reduction in the cost, as I read the papers, of £9.30—the estimated reduction in the average unit cost of applying for probate—as a result of the new system. I am not clear—perhaps the noble Lord can enlighten me when he concludes—about whether his proposal is now to reduce the fees, because of course they will be above the cost of providing the service.

I have been involved in the charity and voluntary sectors. I have worked on their behalf, written reports to the Government, supported them and fought their corner in third-party campaigning and other areas. The reports have been well received by the sector, and sufficiently well received that the Government immediately banned any idea of bringing them in—but never mind about that. The point is that they have made a great case about the impact on charities and charitable donations of the imposition of these particular charges. I must say that, however I work the maths and however I try to work through the ideas, I do not see the logic of the more extreme and indeed scaremongering issues that have been raised by many parts of the sector.

It must surely be perverse that under the present system we are charging the same fee to someone who has a £5,001 estate as to someone who has a £20 million estate. That must be perverse and the present system must not be right. This must be a way of improving it.

[Lord Sharkey (LD)]

My Lords, I will not join in the discussion about what is or is not a Conservative principle, but it is clear that this measure is in fact highly contentious, drafted as it is by the irony division of the Ministry of Justice.

Its 2016 predecessor was also highly contentious, as it attempted to impose probate fees of up to £20,000. The consultation response, which has not so far been mentioned, to the 2016 proposal was overwhelmingly negative. It was opposed by both the Law Society and the Bar Council, among others, and both Houses were, to say the least, worried and unenthusiastic about the proposal.

The grounds for opposition were clear. The proposal was a tax poorly disguised as a fee. It may well have been ultra vires. The use of Section 180(3) of the Anti-Social Behaviour, Crime and Policing Act 2014 as a legal base for the absolutely enormous increase in costs may well not have been within what Parliament envisaged. As the noble Baroness, Lady Meacher, noted, there was no indication at all as that Bill proceeded through Parliament that the power in Section 180(3) would be used to prescribe probate fees to fund the courts and tribunal service generally.

The 2018 version of the SI that we debate today is different from its 2016 predecessor in only one main respect: its charges are lower. In the abandoned 2016 version, the probate fee for estates of £2 million was set at £20,000. In this version, the fee is £6,000. That is a reduction in the quantum only. It does not address the objections raised to the principle of such a charge, so very far above the cost of providing the probate service.

As noble Lords have said, the current probate fee is flat across all sizes of estate. It stands at £155 for an application made by a solicitor and £215 for an individual application. Those fees are based on cost recovery. The principle of cost recovery as the basis for charging for the service is abandoned by this new SI. An estate worth £2 million will pay nearly 40 times the actual cost of the service.

Civil Liability Bill [HL]

Lord Hodgson of Astley Abbotts Excerpts

Ping Pong (Hansard): House of Lords
Tuesday 20th November 2018 Lords Chamber

Customers need to know whether their insurers have acted fairly and kept their promises; insurers need to know that they will be punished if they do not. I look forward to the Minister’s reply.

[Lord Hodgson of Astley Abbotts (Con)]

I raise a narrower point than that of the noble Lord, Lord Sharkey. I refer to the Government’s Amendment 1 where, notwithstanding the heavyweight legal artillery from the noble and learned Lords, Lord Judge and Lord Hope of Craighead, I would like to probe the thinking a little further. What is proposed seems undesirable in a number of aspects, not least of which is that it may put the Lord Chief Justice into a conflicted and undesirable position.

Clause 3, to which the amendment applies, is entitled “Damages for whiplash injuries”. The House will be aware that because of the difficulty of diagnosis—as we have heard from my noble and learned friend—whiplash has provided easy pickings for the fraudulent over several years; in the vernacular of our early debates, the phrase was “cash for trash”. Millions of motorists’ insurance premiums have been unnecessarily increased. The Government—sensibly, in my view—introduced the blanket figure to cover all injuries with a duration of less than two years. That was discussed extensively and amended during the passage of the Bill here and in the other place. It was not, and is not, an uncontroversial policy decision. It remains an issue about which different parts of the House and different political parties have strong views.

Clause 3 is about money and the compensation payable under the whiplash tariff in different circumstances. I invite my noble and learned friend and the House to look at subsections (1) to (5). In each of those, the key word is “amount”—the amount of damages due and payable in different circumstances. The clause provides that these amounts are determined and laid out in regulations by the Lord Chancellor. Under this amendment, as my noble and learned friend pointed out, there would be another hoop to go through, in that the Lord Chancellor would have to consult the Lord Chief Justice before making regulations under the clause. The discussion in the House of Commons was pretty threadbare. I am concerned that the Lord Chief Justice may find himself dragged into policy areas which are not to his advantage. The clause is about money, not process. I ask my noble and learned friend to consider the options available to the Lord Chief Justice when the Lord Chancellor turns up at his office and presents the new tariff. As far as I can see, he has only two. Either he can accept without demur, or he can say that he thinks the proposed new tariff is too high or too low. If he does the latter, on what grounds would he make that judgment? What expertise does a judicial figure, the Lord Chief Justice, bring to the determination of these monetary figures? What expertise is available to him that was not available to the Lord Chancellor in making his original determination?

I make it clear that this is not an attack on the Lord Chief Justice. Indeed, it is intended to draw attention to the difficult position that future Lord Chief Justices may find themselves in as a result of this amendment. They would either have to act as a cipher and simply tick a box, or require amendments to figures that will remain politically highly charged. That runs the risk of the role becoming politically tainted, and further involving the Lord Chief Justice in the determination of matters on which the courts and justice system would later, no doubt, have to adjudicate.

It is not desirable for the Lord Chief Justice of the United Kingdom to be seen either as a cipher or as a participant in political processes. I look forward to hearing from my noble and learned friend why I have so gravely misjudged the situation.

[Lord Monks (Lab)]

My Lords, I declare an interest as a non-executive director of Thompsons, a leading personal injury firm. I have two or three questions for the Minister, particularly on Amendment 1. I thank him for the reply we received to the letter he referred to.

The House of Lords Regulatory Reform Committee advised that the key measures in this Bill, including the levels of compensation for claimants under the tariff scheme, should feature in primary legislation, not secondary. The Constitution Committee said that Ministers should follow this advice unless there were clear and compelling reasons not to. There seems to be a trend for the Government to seek wide delegated powers that permit the determination and implementation of policy. The Constitution Committee warned that the restraint shown by noble Lords towards secondary legislation might not be sustained—a serious warning to the Government that, if this trend continues, secondary legislation might be much more difficult to accomplish. I will be interested to hear the Minister’s comments on that.

Secondly, given that the employer liability clauses will not be dealt with through the new online portal, which is being reserved for whiplash claims, can the Minister confirm that the courts will be able to cope with what will undoubtedly be an increased number of claims without the presence of expert legal representation? It is estimated that they could increase from 5% to 30% of the total number of cases. Can the courts manage that extra responsibility?

Finally, what is meant by “in the long term”? This relates to paragraph 5.66 of the whiplash impact assessment accompanying the Bill, where the Government state that, taking into account adjustments to pre-action protocols, they consider that

“in the long term the courts would operate at cost recovery”.

I would be grateful for an explanation of what cost recovery means in this context.

Civil Liability Bill [HL]

Lord Hodgson of Astley Abbotts Excerpts

3rd reading (Hansard): House of Lords
Wednesday 27th June 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, in moving this Motion I thank noble Lords across the House for their careful scrutiny of the Bill throughout its passage. Noble Lords have made not only detailed but informed contributions to the debate, and that has resulted in improvements to the Bill before it passes to the other place tomorrow for further consideration.

There have been extensive amendments to the whiplash provisions and appropriate amendments to Part 2 with regard to the discount rate. We consider that the Bill is in a better place as a consequence of your Lordships’ contributions.

I have been asked by my noble and learned friend Lord Mackay of Clashfern to put on record a clarification that I provided in my letter to Peers following Report. This relates to a request by the noble Baroness, Lady Bowles, for confirmation that the words “different financial aims” in what was then paragraph 3(3) of the new Schedule A1 to the Damages Act 1996,

“do not provide an override of the conditions laid down in the earlier new paragraph 3(2)”.—[Official Report, 12/6/18; col. 1649.]

As I indicated in my letter, I can confirm that the words in question form part of the definition of the approach to investment that the recipient of relevant damages is to be assumed to take for the purpose of securing the objectives set out in paragraph 3(2) and that the words “different financial aims” cannot therefore override those objectives. It is perhaps appropriate that I put that on record.

Finally, the Government share with the House the view that insurers should be accountable for meeting their commitments to pass on savings from the reforms. Therefore, we have also committed to developing an effective means for reporting on the savings made by the insurance sector being passed on to consumers, making sure that insurers are held to account. We will bring forward an amendment to this effect as soon as possible in the House of Commons. It is quite a complex issue, having regard to, among other things, commercial sensitivity and competition issues.

The noble Lord, Lord Monks, referred to the proposed changes to the small claims limits. We consider that these are appropriate in the circumstances. Of course we are open to debate on these matters, and if the noble Lord wishes to engage with me further on them, I am content to meet with him for that purpose. He is fully aware of the Government’s position on these issues. They form part and parcel of the overall package that we consider has to be delivered to address the issues referred to in the Bill.

Again, I thank all noble Lords for their contributions to the Bill.

[Lord Hodgson of Astley Abbotts]

Before my noble and learned friend sits down, could he possibly say a word about periodical payment orders, an issue which has occupied a number of us quite a lot? He said at the previous stage that he would confirm that the Government placed emphasis on the importance of PPOs as part of the array that is available to the courts when damages are decided.

[Lord Keen of Elie]

My Lords, I am obliged to my noble friend for that reminder. Clearly, it is our intention that this matter should be taken forward. As I indicated before, we are engaging with the judiciary on this matter, and we have engaged already with the Master of the Rolls to see what further developments can be put in place on the provision of PPOs. We share the view that the noble Lord has expressed that the appropriate use of PPOs should be encouraged, and we are grateful to the Master of the Rolls for his agreement in principle to the Civil Justice Council reviewing the law and practice regarding PPOs to see whether they can be improved. The timetable for that has not yet been agreed, but we hope it can begin towards the end of this year or early next year, with a view to completion in the summer of 2019. I hope that that reassures my noble friend.

I thank noble Lords again for their contributions to the Bill. I am content to carry on further discussions relating to the Bill during its time in the House of Commons if noble Lords so wish. Thank you.